Synopsis

Claimant's motion to dismiss affirmative defenses of culpable conduct,
assumption of risk, failure to state a cause of action, governmental immunity,
late filing of the claim, sovereign immunity, privilege and failure to
particularize the elements of the claim as required by Court of Claims Act
§11 is denied.

Claimant has moved to dismiss affirmative defenses of culpable conduct,
assumption of risk, failure to state a cause of action, governmental immunity,
late filing of the claim, sovereign immunity, privilege and failure to
particularize the elements of the claim as required by Court of Claims Act
§11.

The claim is based on allegations that Claimant was deprived of liberty and
property without due process of law in connection with a disciplinary
proceeding.

A motion to dismiss defenses may be made on the ground that a defense is not
stated or has no merit (CPLR 3211[b]). On a motion to dismiss a defense
pursuant to CPLR 3211 (b), all of defendant's allegations must be deemed to be
true and defendant is entitled to all reasonable inferences to be drawn from the
proof submitted (Capital Tel. Company v Motorola Communications &
Elecs., 208 AD2d 1150). Claimant has failed to establish that any of the
defenses are inadequate as pleaded or are without merit. Accordingly, the
motion to dismiss defenses is denied.

Claimant has also requested an immediate trial of the issues raised on the
motion (CPLR 3211[c]). The request is denied.

A pleaded defense of failure to state a cause of action is harmless surplusage
and a motion to strike it is unnecessary and should be denied (Pump v Anchor
Motor Freight, Inc., 138 AD2d 849).

August 23, 2000Saratoga
Springs, New York

HON. THOMAS J. MCNAMARAJudge of the Court of
Claims

Papers Considered:

1. Notice of Motion dated June 6, 2000.

2. Affidavit in Support sworn to the 6th day of June, 2000 with exhibits
annexed.